Importance of Preserving “Electronic Evidence” During Incapacity or After Death

Recently, four potential heirs were found guilty of conspiracy to murder, based on evidence of Google searches for “easiest way to kill an old person,” “poisonous toadstools,” and “1,000 ways to die,” followed by an attack carried out on their 89-year-old father/grandfather. A September 29, 2011, BBC story describes the case, and notes that the prosecution said these family members were trying to kill the man to inherit his money.

In my articles and seminars, I stress the importance of preserving potential “electronic evidence,” including data stored in cell phones, smartphones, computers, and storage media, during a guardianship, conservatorship, probate estate, or trust administration. Although this case is an extreme example, it is especially important to preserve this potential electronic evidence if there is a current or potential future law enforcement investigation or civil suit involving the incapacitated or deceased person.

But, even if there isn’t an investigation or civil suit, still strongly consider hiring a computer security or computer forensics expert before turning on or attempting to access the cell phones, smartphones, computers, and storage media. At least consider making an exact image copy of the storage media before it’s first accessed so that copies of the original data can be preserved and examined without fear of altering or destroying any important data. Simply turning on and booting up a smartphone or computer can overwrite or wipe out data that may be useful in tracking down the person’s online accounts and attempting to recover passwords for those accounts.

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